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Heather Mac Donald
The War on the War on Terror Continues
The Times twists the truth to discredit the Justice Department.
25 July 2003

Driven by its eagerness to discredit the Bush administration, the New York Times has misread a recent Justice Department report on alleged government abuse of terror suspects. More important, the paper’s front-page smear set off a chain reaction of imitation news articles across the country, parroting the Times’s error. Thus has the war on the war on terror been waged—with misrepresentation, group-think, and blinding bias.

The Times announced on July 21 that the Justice Department’s inspector general had “received 34 complaints of civil rights violations by department employees that it considered credible.” Lest the reader miss the significance of this purported scoop, reporter Philip Shenon editorialized: “The inspector general’s report . . . is likely to raise new concern among lawmakers about whether the Justice Department can police itself when its employees are accused of violating the rights of Muslim and Arab immigrants swept up in terrorism investigations under the [USA Patriot Act].” (The Patriot Act, passed in 2001 after the 9/11 attacks, attempts to improve the government’s intelligence and other terror-fighting capacities, as the current issue of City Journal explains.)

Set aside for a moment the weight that we should accord 34 allegations of civil-rights violations filed over a six-month period. The linchpin of the Times’s “exposé” is its statement that the inspector general “considered” those 34 complaints “credible.” This phrasing suggests that the inspector general had investigated the complaints and reached a factual judgment about their truth. But the office of the inspector general puts the matter differently. According to its July 17 report, the office received several hundred filings over the last six months that appeared to state a claim within its jurisdiction—that is, they concerned a Justice Department entity or official, and claimed a “Patriot Act” or “civil rights” violation. Upon closer analysis, however, the vast majority of those several hundred complaints, as written, proved unrelated to the Patriot Act—inquiring, for example, about pending immigration matters. That left 34 that, the report stated, ”raised credible Patriot Act violations on their face.”

The key phrase here is “on their face”—a lawyer’s term that means that a claim, as written, meets legal requirements of sufficiency. An employment discrimination suit, for example, that fails to allege that the defendant employed the plaintiff does not “on its face” state a job discrimination cause of action. Conversely, a discrimination claim may be “facially” valid—that is, it alleges all the elements of a discrimination case—but later be shown at trial to lack any factual basis.

The July 17 report drew no conclusions about the likely truth of those 34 facially valid complaints. Nor could it, for it has opened investigations into only six of them. Yet the nation’s press corps dutifully took the Times’s bait. ABUSE OF POST-9/11 DETAINEES DETAILED; 34 ‘CREDIBLE’ CASES IN FOLLOW-UP REPORT, trumpeted the Chicago Tribune the next day. REPORT OUTLINES RIGHTS VIOLATIONS IN SEPT. 11 ACT, announced USA Today. The Financial Times noted with barely concealed satisfaction that the “nearly three dozen credible complaints of abuses” were the “latest blow to the Justice Department.” The San Jose Mercury News echoed the New York Times’s prediction of backlash: “The 34 alleged ‘credible’ abuses [are] expected to intensify criticism of the Justice Department.” Only the Washington Post got the story right: “The Justice Department's inspector general is investigating six complaints from Muslims who have alleged that federal employees pursuing enforcement of the USA Patriot Act violated their civil rights or civil liberties,” read its lead. Not a word about “34 credible complaints.”

I spoke with the Inspector General’s spokesman, Paul Martin, on the day of the Times’s front-page exposé. Calls from reporters piggybacking on the Times’s article were pouring in. “What they should be doing is reading the report,” he lamented. “The New York Times didn’t get it quite right,” he said, noting that the Times did not speak with his office before publishing its story. “It overplayed what this is and isn’t. We have received 34 allegations which on their face cite a Justice Department employee and a section 1001-related abuse [the Patriot Act section empowering the Inspector General to investigate civil-rights violations]. That’s all it is.” But the Times “sets the agenda,” he observed, rightly anticipating the next day’s lemming swarm.

But enough of this legal nit-picking! one might object. Just because the Justice Department has yet to investigate all 34 of the Patriot Act complaints doesn’t mean that those complaints don’t show a real civil-rights problem, right?

Wrong. Here are summaries of the cases—all facially valid complaints—that the inspector general recently closed after further investigation.

  • Case number one: An illegal alien detainee claimed that he had been beaten, denied adequate medical treatment, and forced to eat pork on a regular basis. The investigation showed, however, that the detention facility had a 100 percent pork-free diet and that the detainee had consented to having his badly infected teeth removed. As for the alleged assault, the inspector general could substantiate no injuries or come up with a consistent account from witnesses.
  • Case number two: A detainee claimed that an unidentified guard had slammed a food tray door in his face and failed to provide medical treatment. But the detainee refused to look at a photo line-up of guards to pick out his assailant, nor was he willing to submit to an interview. Despite conducting numerous interviews in the jail, investigators couldn’t substantiate the alleged attack.
  • Case number three: A detainee reported that he had suffered a bad beating in retaliation for a jailhouse protest. Prison records contained no documentation of any injury, but they did indicate that the detainee, since deported, had been charged with assaulting an officer and had to be restrained with pepper spray.

The Times’s front-page scoop presumes that an allegation of abuse is the same as proof of abuse. If the closed cases are any indication, that is a shaky assumption. Nor do the cases still under review look more promising for the anti-Bush forces. The following open case is typical: One detainee alleges that a fellow detainee had suffered physical abuse from guards. Medical records show no injuries to the second prisoner, but they do document that he had received a painkiller for a knee injury sustained on the basketball court. The chance that prisoners in the detainee’s home country have basketball courts in their jail is exactly zero.

Only when it comes to charges against itself, it seems, does the New York Times understand the difference between an allegation and proof of abuse. Disgraced ex-Times reporter Jayson Blair has publicly accused the paper of discriminating against him, yet the paper has yet to publish any record of his unproved accusations. The now-infamous Blair developed a massive portfolio of errors, fabrications, plagiarism, and unprofessional conduct from the day he arrived at the Times, yet top management continually promoted him against the warnings of his supervisors. Blair’s charges of racism may be ludicrous, but had he accused any other institution of bigotry, you can bet that the Times would have been his eager tribune.

The inspector general recounts only two complaints for which substantiating evidence has turned up. They hardly support the idea that the war on terror has corrupted the federal government into committing widespread civil-rights abuses. In the first, a prison guard has admitted to abusing a Muslim inmate verbally. The charge: that he had ordered the inmate to remove his shirt in order to use it to shine the guard’s shoes. The Justice Department hasn’t determined whether the guard actually carried out his threat. In the second complaint, the Bureau of Prisons substantiated the charge that a prison doctor had taunted an inmate. The inmate claimed that the doctor threatened: “If I was in charge, I would execute every one of you . . . because of the crimes you all did.”

Such insults, however deplorable, are irrelevant to the validity of the legal authority granted under the Patriot Act. Neither the guard nor the doctor was acting under Patriot Act powers; they were fulfilling prison duties that existed long before the act. The vast majority of post-9/11 complaints are garden-variety prison abuse cases, almost always by guards. It is sad but true that prison guards do not always behave professionally. No one argues, however, that we should therefore abolish criminal laws, trials, or prisons. To use the ugly behavior of a few rogue immigration guards (and one doctor)—obviously mad as hell about 9/11—to discredit the Bush administration’s carefully thought-out program to improve intelligence gathering against terrorists is a non sequitur. What exactly are the New York Times and its civil-libertarian satellites suggesting—that the government stop investigating terror suspects because there’s a chance that some will be taunted in jail?

Some perspective, please: the number of complaints under investigation, even if all prove true, is a minute fraction of the thousands of contacts that the government has had with immigrants from terror-sponsoring and -breeding countries over the last two years. In the previous six months alone, the government interviewed thousands of Iraqis for intelligence and re-registered tens of thousands of Middle Eastern and North African immigrants. Thirty-four facially valid complaints of abuse and disrespect out of tens of thousands of contacts testifies to the law enforcement community’s professionalism.

The Times’s ongoing attacks on the Bush administration also fail to acknowledge the unprecedented bureaucratic machinery that the government put in place immediately after September 11 to protect Muslims from bigotry. Never before in the history of war has a government taken such care and spent such money to safeguard the rights of aliens, immigrants, and enemy-combatant suspects. In response to the Patriot Act’s mandate to review alleged civil-rights abuses by Justice Department employees, the Inspector General created a Special Operations Branch staffed by an FBI Special Agent in Charge, two assistant Special Agents in Charge, and two investigative specialists. This bureaucracy doesn’t come cheap. In the last six months, the Special Operations Branch has spent nearly half a million dollars advertising for civil-rights complainants on TV, radio, and in newspapers, and then investigating the resulting complaints. The Justice Department’s Civil Rights Division has its own effort, the so-called Initiative to Combat Post-9/11 Discriminatory Backlash and a National Origin Working Group.

A true news analysis of the Bush administration’s war on terror would read: Government safeguards civil liberties while strengthening national defenses. Don’t expect the New York Times to write that story, however. It’s not news the Times deems fit to print.

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More by Heather Mac Donald:
Prosecution Gets Smart
New York City’s Crime Disease
De Blasio’s Policing Dilemma
More . . .
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